IN THE SUPREME COURT OF TEXAS

444444444444NO. 01-0728

444444444444

RICK PERRY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE

STATE OF TEXAS, AND HENRY CUELLAR, IN HIS OFFICIAL CAPACITY

AS SECRETARY OF STATE OF THE STATE OF TEXAS, PETITIONERS

v.

ALICIA DEL RIO, PHYLLIS DUNHAM, AND JEREMY WRIGHT ,RESPONDENTS

4444444444444444444444444444444444444444444444444444ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

– consolidated with –

444444444444NO. 01-0810

444444444444

RICK PERRY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE

STATE OF TEXAS, AND HENRY CUELLAR, IN HIS OFFICIAL CAPACITY

AS SECRETARY OF STATE OF THE STATE OF TEXAS, PETITIONERS

v.

MARTHA COTERA, RESPONDENT

4444444444444444444444444444444444444444444444444444ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

1 Del Rio v. Perry, No. GN-003665 (353rd Dist. Ct., Travis County, Tex., filed Dec, 27, 2000); Cotera v. Perry, No.GN-101660 (353rd Dist. Ct., Travis County, Tex., filed May 31, 2001).

2 Associated Republicans of Texas v. Cuellar, No. 2001-26894 (281st Dist. Ct., Harris County, Tex., filed May24, 2001); Rivas v. Cuellar, No. 2001-33760 (152nd Dist. Ct., Harris County, Tex., filed July 3, 2001). The cases have beenconsolidated in the 281st District Court.

2

– consolidated with –

444444444444NO. 01-0827

444444444444

IN RE KEN BENTSEN, ET AL., RELATORS

4444444444444444444444444444444444444444444444444444ON PETITION FOR WRIT OF MANDAMUS TO THE

281ST DISTRICT COURT IN HARRIS COUNTY

4444444444444444444444444444444444444444444444444444

Argued September 10, 2001

JUSTICE HECHT, delivered the opinion of the Court, in which CHIEF JUSTICE PHILLIPS, JUSTICE

ENOCH, JUSTICE OWEN , JUSTICE HANKINSON, JUSTICE O’NEILL, JUSTICE JEFFERSON, and JUSTICE

RODRIGUEZ joined.

JUSTICE BAKER issued a dissenting opinion.

Four cases challenging the constitutionality of the State’s congressional districts in light of the 2000

decennial census, all involving essentially the same issues, parties, lawyers, and witnesses, were set for trial

on the same day, September 10, 2001, two in a district court in Travis County1 and two in a district court

in Harris County.2 Before us are two interlocutory appeals from the cases in Travis County, an original

3 TEX. R. APP. P. 64.1.

4 U.S. CONST. amend. XIV, § 2.

5 Id. art. I, § 2, cl. 3.

6 White v. Weiser, 412 U.S. 783, 794 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)).

3

mandamus proceeding arising out of the cases in Harris County, and motions to stay the trials in all of the

cases. The central dispute is over which of the two district courts has dominant jurisdiction and should

proceed to trial first. We hold, for reasons that we explain, that the district court in Travis County has

dominant jurisdiction and should proceed to trial immediately, and that the district court in Harris County

should abate the cases pending there. We conditionally grant the petition for writ of mandamus in No. 01-

0827 and dismiss the interlocutory appeals in No. 01-0728 and No. 01-0810 as moot. The stays we

previously issued are lifted. Because of the importance of completing the trial with dispatch, no motions

for rehearing will be entertained.3

I

The members of the United States House of Representatives must be “apportioned among the

several States according to their respective numbers”4 as determined by the decennial census.5 As a result

of the 2000 census, Texas is entitled to two additional congressional delegates, and thus the State’s

congressional districts must be redrawn. Although the United States Supreme Court has held “[f]rom the

beginning” that redistricting “‘is primarily a matter for legislative consideration and determination,’”6 the 77th

Legislature this year adjourned its regular session without redrawing congressional districts, and the

Governor has notified the presiding officers of that body that he will not reconvene it in special session to

7 Letter from Governor Rick Perry to Lieutenant Governor Bill Ratliff and James E. “Pete” Laney, Speaker of theHouse of Representatives (July 3, 2001):

As you know, on May 26 I asked each of you to work with your respective colleagues to build supportfor a congressional redistricting plan that could be passed into law. After visiting with both of you,and after reviewing the efforts of your respective redistricting committees, it is now clear to me thatthe Texas Legislature is not currently able to reach a consensus on a new congressional plan.

Although I expect Texans will be disappointed with the inability to accomplish this task, I believeTexans would be even more disappointed if we expend considerable sums of taxpayer money to callthe legislature into a special session that has no promise of yielding a redistricting plan for Congress.I, therefore, have decided that it is not in the best interest of our State to call a special session at thistime.

8 Growe v. Emison, 507 U.S. 25 (1993); Scott v. Germano, 381 U.S. 407 (1965) (per curiam); Wesberry v. Sanders,376 U.S. 1 (1964).

9 Growe, 507 U.S. at 35-37.

10 Balderas v. Texas, Civil No. 6:01-CV-158 (E.D. Tex., order filed July 23, 2001); Mayfield v. Texas, Civil No. 6:01-CV-218 (E.D. Tex., order filed July 23, 2001); Manley v. Texas, Civil No. 6:01-CV-231 (E.D. Tex., order filed July 23, 2001).The other two pending federal court cases are Associated Republicans of Texas v. Texas, Civil No. W-01-CA-167 (W.D.Tex., filed May 25, 2001), and Anderson v. Texas, Civil No. W-01-CA-214 (W.D. Tex., filed July 6, 2001). Also, a motionto reopen proceedings was filed in Vera v. Bush , Civil No. H-94-0277 (S.D. Tex., filed Jan. 26, 1994).

4

consider redistricting “at this time”.7 It therefore falls to the courts — first the Texas courts and then those

of the United States — to reconstruct the State’s congressional districts.8 The federal courts must defer,

but only for a reasonable time, and may set a deadline for state courts to act.9 That deadline, set by the

United States District Court for the Eastern District of Texas in three of the five congressional redistricting

cases filed in federal courts this year, is October 1, 2001, after which the federal court has stated that if no

state redistricting plan is adopted it will proceed in its own cases to minimize the “risk of disrupting and

delaying elections”.10

11 Del Rio v. Perry, No. GN-003665 (353rd Dist. Ct., Travis County, Tex., filed Dec, 27, 2000); Cotera v. Perry,No. GN-101660 (353rd Dist. Ct., Travis County, Tex., filed May 31, 2001); Connolly v. Perry, No. GN-102250 (98th Dist.Ct., Travis County, Tex., filed July 23, 2001).

12 Associated Republicans of Texas v. Cuellar, No. 2001-26894 (281st Dist. Ct., Harris County, Tex., filed May24, 2001); Rivas v. Cuellar, No. 2001-33760 (152nd Dist. Ct., Harris County, Tex., filed July 3, 2001).

13 Del Rio v. Perry, No. GN-003665 (353rd Dist. Ct., Travis County, Tex., filed Dec, 27, 2000).

14 Alicia Del Rio, Phyllis Dunham, and Jeremy Wright.

15 TEX. GOV’T CODE § 323.001.

5

Five congressional redistricting cases, all raising essentially the same issues, have been filed in Texas

courts, three in Travis County by persons identified with the Democratic Party,11 and two in Harris County

by persons identified with the Republican Party.12 The Legislature has not provided adequate procedures

for judicial administration to prevent undesirable forum-shopping and provide a simple means for

designating a single court and judge for trial of these issues, thereby saving taxpayers and litigants the

unnecessary cost of multiple proceedings involving the same issues and preventing delay that could disrupt

the 2002 elections. Therefore, we must attempt to apply general legal principles for determining dominant

jurisdiction between competing trial courts to resolve the mounting disputes that threaten any final state-

court resolution of congressional redistricting issues before the October 1 deadline. To do so, we must

explain in some detail the procedural history of the pending cases.

The first case, Del Rio v. Perry, was filed in Travis County on December 27, 2000.13 At that time,

no official census data was available — the U.S. Secretary of Commerce did not release preliminary state-

by-state figures until the next day — but the plaintiffs14 asserted that estimates by the Texas Legislative

Council15 showed that Texas would be apportioned two additional congressional seats. The plaintiffs

16 Mayfield v. Texas, No. 2:00-CV-268 (E.D. Tex., filed Dec. 28, 2000); Lee v. Texas, No. 6:01-CV-98 (E.D. Tex., filedMar. 5, 2001); Associated Republicans of Texas v. Texas, No. W01-CA-083 (W.D. Tex., filed Mar. 9, 2001). Also, a motionto reopen proceedings was filed in Vera v. Bush , Civil No. H-94-0277 (S.D. Tex., filed Jan. 26, 1994).

17 Mayfield v. Texas, No. 2:00-CV-268 (E.D. Tex., order filed Apr. 26, 2001); Lee v. Texas, No. 6:01-CV-98 (E.D.Tex., order filed Apr. 26, 2001); Associated Republicans of Texas v. Texas, No. W01-CA-083 (W.D. Tex., order filed May8, 2001). Also, the motion to reopen proceedings was denied in Vera v. Bush , Civil No. H-94-0277 (S.D. Tex., order filedMay 31, 2001).

6

acknowledged that “the appropriate opportunity” for correcting their complaints was in the regular

legislative session that would convene January 9, 2001, but alleged that there was “reason to believe” that

the Legislature would deadlock over a redistricting plan. The plaintiffs asserted that the trial court could

act “[i]f the State of Texas fails to enact a new congressional redistricting plan in the 2001 session, or if it

enacts one that is legally inadequate”. The plaintiffs named as defendants the State of Texas, the Governor,

the presiding officers of the Senate and House of Representatives, the Secretary of State, and the chairs

of the Texas Democratic Party and the Texas Republican Party. All of the defendants except the

Democratic Party chair filed pleas to the jurisdiction, asserting that the case was not ripe when it was filed

and therefore the court lacked subject matter jurisdiction. The Democratic Party chair filed a plea in

abatement, urging that the action be left pending in the event that judicial action should become warranted.

The detailed census data necessary for redistricting was not released until March 12, 2001. Prior

to that date, three congressional redistricting cases had been filed in federal courts.16 Each of these cases

was dismissed for lack of ripeness necessary for jurisdiction because the Legislature had not had an

opportunity to adopt a redistricting plan.17 In one of the cases, dismissed on May 8, the federal court

stated that “there is no threat that the Texas Legislature will fail to enact valid redistricting plans before the

18 Associated Republicans of Texas v. Texas, No. W01-CA-083 (W.D. Tex., order filed May 8, 2001)(memorandum and order at 6).

19 Associated Republicans of Texas v. Cuellar, No. 2001-26894 (281st Dist. Ct., Harris County, Tex., filed May24, 2001).

20 See Rules of the Texas Senate, Tex. S.R. 3, 77th Leg., R.S. (2001) (adopting with minor changes Tex. S.R. 40,76th Leg., R.S. (1999), in turn adopting with minor changes Tex. S.R. 3, 75th Leg. R.S. (1997)), Rule 22.01 (“It shall requirea vote of two-thirds of the members present to suspend any rule of the Senate, unle ss the rules specify a differentmajority.”); Rules of the Texas House of Representatives, Tex. H.R. 5, 77th Leg., R.S. (2001), Rule 8, § 13, House

7

next election cycle begins.”18 That same day, however, the Del Rio plaintiffs amended their petition to

allege that although the Legislature had full access to the necessary census data, “there is reason to believe

that the State of Texas will deadlock over congressional redistricting and fail to enact a new plan in the

regular session of the Texas Legislature that is now in progress.” The plaintiffs alleged that no congressional

redistricting bills had been reported out of committee, and that House rules set May 10 as the last day for

the House to pass its own bills and May 18 as the last day for the House to receive Senate bills. “For all

practical purposes,” the plaintiffs asserted, it was “a near-certainty” that the Legislature would fail to redraw

congressional districts during its regular session.

On May 15, the district court in Del Rio heard the defendants’ pleas to the jurisdiction (excluding

Speaker Laney’s) but did not announce a decision. On May 24, four days before the adjournment of the

Legislature, the second state redistricting case, Associated Republicans of Texas v. Cuellar,19 was filed

in Harris County. The petition alleged that “[d]ue to the rules of the Texas Legislature,” it was “almost

certain that no redistricting plan of any kind will be passed by the Texas Legislature in its regular session.”

The petition did not address, however, whether the rules of the House and Senate could be suspended to

permit last-minute consideration of a congressional redistricting plan.20 While the plaintiffs acknowledged

Precedents No. 1 (“The point of order [that time under the rules has expired] is raised every session, and just as regularlyoverruled. Such a ruling is justified by necessity, custom, and precedent. It is usually impossible to wind up thebusiness of a session within the exact number of hours remaining after the twenty-four hour rule and other end-of-the-session rules are in force. In fact, it is customary to suspend most of these rules for specific purposes in order tocomplete the session’s business.”); id. Rule 14, § 3 (“A motion to suspend the rules shall be in order at any time, exceptwhen motions to adjourn or recess are pending, even when the house is operating under the previous question.”).

21 Letter from Governor Rick Perry to Lieutenant Governor Bill Ratliff and James E. “Pete” Laney, Speaker of theHouse of Representatives (May 26, 2001):

I have on several occasions discussed with each of you the possibility of calling a special session toconsider congressional and State Board of Education redistricting. While a special session may benecessary, it is expensive for the State and disruptive to the lives of the citizen legislators who areabout to complete a grueling 140-day regular session.

It is to everyone’s benefit that any special session be conducted in as efficient a manner as possibleand have the best chance of producing a positive result. To that end, I ask that the House and Senatebegin work soon after the adjournment of the regular session on drawing congressional and StateBoard of Education plans that can receive the support of both houses. Once they have producedacceptable plans, I will call a special session for that purpose. In this way we can have the entireLegislature in special session in the most efficient manner and, I believe, improve the chances of asuccessful outcome.

I urge you to begin work and to accomplish the task as soon as possible, and I pledge to be of whatassistance I can to assist in achieving a positive result.

8

that it remained uncertain whether the Governor would convene a special session of the Legislature, they

asserted that it was unlikely because there was “no sign that the Texas Legislature could produce a plan

in a special session.” Two days later, Governor Perry wrote to Lieutenant Governor Ratliff and Speaker

Laney, urging that the Legislature continue to work on redistricting after the regular session, and stating that

he would call a special session once acceptable plans were produced.21

On May 28, the Legislature adjourned sine die without having adopted a redistricting plan for the

congressional delegation, the Senate, the House, or the State Board of Education. Three days later, on

May 31, the plaintiffs in Del Rio again amended their petition, noting that the Legislature had not redrawn

congressional districts during its regular session, and asserting that a special session would be unlikely.

22 Cotera v. Perry, No. GN-101660 (353rd Dist. Ct., Travis County, Tex., filed May 31, 2001).

23 Act of June 4, 1971, 62nd Leg., 1st C.S., ch. 12, 1971 Tex. Gen. Laws 38; Act of Aug. 10, 1981, 67th Leg., 1stC.S., ch. 2, 1981 Tex. Gen. Laws 37; Act of Aug. 25, 1991, 72nd Leg., 2nd C.S., ch. 7, 1991 Tex. Gen. Laws 41.

24 TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (“A person may appeal from an interlocutory order of a districtcourt, county court at law, or county court that . . . grants or denies a plea to the jurisdiction by a governmental unit asthat term is defined in Section 101.001.”).

9

These allegations were echoed in a new case filed the same day in the same court against the same

defendants, Cotera v. Perry,22 the third congressional redistricting case to be filed in state court. Four of

the defendants — the Governor, the Lieutenant Governor, the Secretary of State, and Weddington, the

Republican Party chair — filed pleas to the jurisdiction asserting that Cotera was not ripe when it was filed

and should be dismissed because of the real possibility on May 31 that the Governor would reconvene the

Legislature in special session. Indeed, the pleas noted, it was at that time even likely that the Governor

would call a special session, given that congressional redistricting plans had been enacted in special sessions

in 1971, 1981, and 1991.23

On June 1, the trial court in Del Rio resumed the hearing on the defendants’ pleas to the jurisdiction

and at the conclusion, indicated that it would overrule them. The court signed an order to that effect on

June 13. The day before the order was signed, the plaintiffs nonsuited the State of Texas, hoping to

forestall an interlocutory appeal, which is allowed from an order denying a plea to the jurisdiction by a

governmental unit.24 Nevertheless, the Governor, the Lieutenant Governor, and the Secretary of State filed

notices of appeal. Defendant Weddington, believing that she was not entitled to appeal, petitioned this

Court for review by mandamus. We denied Weddington’s petition for mandamus because she had not

25 44 Tex. Sup. Ct. J. 1056 (Aug. 1, 2001) (citing TEX. R. APP. P. 52.3(e)).

26 Martha Cotera.

27 ___ S.W.3d ___ (Tex. App.—Austin 2001).

28 Id. at ___.

29 Id. at ___.

10

first presented it to the court of appeals.25 While the interlocutory appeal remained pending in the court

of appeals, the plaintiff26 in Cotera nonsuited the State of Texas as the plaintiffs had done in Del Rio, the

trial court granted defendant Laney’s motion to consolidate Del Rio and Cotera, and the court overruled

the defendants’ pleas to the jurisdiction in Cotera.

On August 9, the court of appeals affirmed the denial of the pleas to the jurisdiction in Del Rio.27

Although no appeal had yet been taken from the trial court’s denial of the pleas to the jurisdiction in

Cotera, the court held that the plaintiff’s claims in that case were clearly ripe because “[o]nce the legislature

adjourned without having passed a redistricting bill, the issue was ripe for litigation.” Then the Court

concluded: “Having determined that Cotera’s claims were ripe, we need not decide the issue regarding Del

Rio’s claims because the two causes are now consolidated. We must decide the appeal based upon the

posture of the record before us.”28 The court also held that the appellants were entitled to take an

interlocutory appeal as “governmental units” because they were sued in their official capacities.29

The Governor, the Lieutenant Governor, and the Secretary of State also appealed from the denial

of their pleas to the jurisdiction in Cotera. The appellees moved the court of appeals to affirm the trial

30 Perry v. Cotera , No. 03-01-00476-CV (Tex. App.—Austin 2001) (per curiam) (unpublished).

31 Rivas v. Cuellar, No. 2001-33760 (152nd Dist. Ct., Harris County, Tex., filed July 3, 2001).

32 See note 7, supra .

33 Connolly v. Perry, No. GN-102250 (98th Dist. Ct., Travis County, Tex., filed July 23, 2001).

11

court’s rulings summarily because the very same issues had already been decided in the prior appeal. On

August 31, the court of appeals dismissed the Cotera appeal for want of jurisdiction.30

Concurrent with all of the activity in the Travis County cases, litigation over the same issues in

Harris County was no less active. On July 3, the fourth congressional redistricting case in state court, Rivas

v. Cuellar,31 was filed in Harris County against the same defendants named in ART. The petition asserted

that not only had the Legislature not enacted a congressional redistricting plan during its regular session,

“neither chamber did substantial work” on a plan. The petition further asserted that “Governor Perry has

announced that he will not call a special session of the Texas Legislature” — the formal announcement, as

we have already said, was made on July 3,32 the very day Rivas was filed — and “[a]s a result, Texas’s

congressional districts may now be redrawn only by the courts”. Rivas was later consolidated with ART,

and on July 24, the trial court set a trial date of September 10. The court in Travis County had previously

set Del Rio and Cotera for trial on September 17, but on August 7 it advanced that trial setting to

September 10 to coincide with the trial setting in ART and Rivas. The court in Travis County consolidated

the fifth state case, Connolly v. Perry,33 filed July 24, with Del Rio and Cotera, but later reversed itself

in order to preserve the September 10 trial setting.

34 Bill Ratliff, in his official capacity as Lieutenant Governor of the State of Texas; James E. “Pete” Laney, in hisofficial capacity as Speaker of the Texas House of Representatives; Molly Beth Malcolm, in her official capacity as thechairwoman of the Texas Democratic Party; Susan Weddington, in her official capacity as chairman of the RepublicanParty of Texas; Ken Bentsen, Member of Congress, 25th Texas Congressional District; Gene Green, Member of Congress,28th Texas Congressional District; Sheila Jackson Lee, Member of Congress, 18th Texas Congressional District; NicholasV. Lampson, Member of Congress, 9th Texas Congressional District; John Culberson, Member of Congress, 7th TexasCongressional District; Joe Barton, Member of Congress, 6th Texas Congressional District; Tom DeLay, Member ofCongress, 22nd Texas Congressional District; Kevin Brady, Member of Congress, 8th Texas Congressional District; SamJohnson, Member of Congress, 3rd Texas Congressional District; American GI Forum of Texas, Inc.; Phil Sudan; LesterBellow; Homer C. Guillory; John Bland; Reverend Willie Davis; and Howard County.

35 Representative Green, Representative Lee, Representative Lampson, Bellow, Guillory, Bland, and Davis.

36 Associated Republicans of Texas, Jeffrey N. Daily, Larry P. Bowles, Henry deForest Ralph, Jr., and DanielRivas.

12

A number of parties intervened in ART and Rivas.34 Among them, Representative Bentsen, along

with three other members of Congress and others associated with the Democratic Party,35 filed a plea to

the jurisdiction and a plea in abatement on August 22, asserting that the Del Rio case had dominant

jurisdiction and therefore the ART and Rivas cases should either be dismissed or abated. On August 28,

two other intervenors, Speaker Laney and Chairwoman Malcolm, served pleadings adopting the Bentsen

group’s plea to the jurisdiction. The plaintiffs36 in the cases opposed the pleas. On August 31, the trial

court overruled the pleas of the Bentsen group and Malcolm, but ordered that Laney’s adoption of the plea

to the jurisdiction be struck from the record to prevent Laney from appealing and possibly delaying the trial.

On August 10, the Governor and the Secretary of State filed a petition for review of the court of

appeals’ ruling in Del Rio but did not request expedited consideration. On September 4, they also filed

a petition for review of the court of appeals’ ruling in Cotera. On September 5, they filed an “emergency

motion” to stay the trial in the Travis County cases, arguing in part that the interlocutory appeal statute

37 See TEX. CIV. PRAC. & REM. CODE § 51.014(b) (“An interlocutory appeal under Subsection (a) shall have theeffect of staying the commencement of a trial in the trial court pending resolution of the appeal.”).

38 Laney v. Cuellar, No. 01-01-00758 (Tex. App.—Houston [1st Dist.], notice filed Sept. 5, 2001).

39 44 Tex. Sup. Ct. J. ___ (Sept. 7, 2001).

13

automatically stayed the commencement of trial.37 On the same day, Speaker Laney noticed an appeal

from the denial of his plea to the jurisdiction in the Harris County cases,38 and the next day, September 6,

the Bentsen group filed a petition for mandamus and “emergency” request to stay the trial in the Harris

County cases. The “emergency” request, like the “emergency motion”, was based in part on the

interlocutory appeal statute.

On Friday, September 7, we stayed the trials in both counties, requesting that both district courts

remain ready to proceed on further order of this Court, and scheduled argument on all pending matters for

September 10 at 10:00 a.m.39

II

Central to resolving all three petitions before us are these three issues: first, can a court have

subject matter jurisdiction of a claim that was not ripe when the case was filed but became ripe while the

case was pending? second, does a case filed on a claim that is not yet ripe have dominant jurisdiction over

a case filed on the same claim after it has become ripe? and third, when did the challenges to the existing

congressional districts in the four cases here become ripe? We discuss each in turn.

Our discussion is further complicated by the differences in the views of the parties aligned on the

Republican side of the redistricting claims and the parties aligned on the Democratic side. For ease of

40 See 13 CHARLES A LAN W RIGHT , ARTHUR R. M ILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND

PROCEDURE § 3529, at 278-279 (2d ed. 1984).

41 See 13A W RIGHT, supra note 40, § 3532.1, at 114.

42 ASARCO, Inc. v. Kadish , 490 U.S. 605, 617 (1989) (noting that the constraints of Article III of the U.S.Constitution do not apply to state courts, and citing Bateman v. Arizona, 429 U.S. 1302, 1305 (Rehnquist, Circuit Justice1976)).

14

reference only, and without dismissing the differences on each side, we refer to the Republican group

generally as “petitioners”, because they join for the most part in the arguments made by the petitioners in

the interlocutory appeals, and we refer to the Democratic group generally as “relators”, because they join

mostly in the arguments made by the relators in the original mandamus proceeding.

A

No one questions that federal constitutional challenges to the existing congressional districts in

Texas are now ripe for decision, given that Texas is entitled to two additional seats and no doubt remains

that the Legislature will not redistrict. What the parties here dispute is whether a case filed when such

challenges were not ripe must be dismissed for want of jurisdiction after it has become ripe.

Ripeness is one of several categories of justiciability.40 A threshold question is whether federal or

state law determines the ripeness of federal constitutional claims like those made in the four pending cases.

In determining standing, another justiciability issue,41 the United States Supreme Court has said that “state

courts are not bound to adhere to federal standing requirements.”42 With federal constitutional rights at

issue, we have sometimes sought guidance on ripeness issues in more extensively developed federal

43 See, e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928-929 (Tex. 1998).

44 Williams v. Lara , ___ S.W.3d ___, ___ (Tex. 2001) (citing Bateman) ; Texas Ass’n of Bus. v. Texas Air ControlBd., 852 S.W.2d 440, 444 (Tex. 1993).

45 16B W RIGHT, supra note 40, § 4023, at 353 (2d ed. 1996). See also Mayhew, 964 S.W.2d at 929 n.1 (“Whilestate procedural law generally determines the manner in which a federal question is to be presented in state court, thatis not the case if federal substantive law defines its own procedural matrix.”) (citing LAURENCE H. TRIBE, AMERICAN

CONSTITUTIONAL LAW § 3-24, at 166 (2d ed. 1988)).

46 Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974).

47 13A W RIGHT, supra note 40, § 3532, at 104 (2001 Supp.) (cited and quoted in Texas v. United States, 523 U.S.296, 300 (1998), and Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-581 (1985)).

48 Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733 n.7 (1997); Reno v. Catholic Social Servs., Inc.,509 U.S. 43, 57 n.18 (1993); Buckley v. Valeo, 424 U.S. 1, 114 (1976); Regional Rail Reorganization Act Cases, 419 U.S.at 138; see 13A W RIGHT, supra note. 40, § 3532.1, at 114-115.

15

jurisprudence,43 but we have done the same with standing issues without ceding the authority of state law.44

We are inclined to think that ripeness, like standing and other justiciability issues, should be determined by

state law, as long as applying state law does not defeat what Professor Wright has called “the uncertainly

defined obligation of state courts to provide a remedy for federal wrongs,”45 but as it applies here at least,

we see no difference between our law and federal law.

The Supreme Court has characterized ripeness as “peculiarly a question of timing.”46 Summarizing

federal case law, Professor Wright has explained: “Ripeness doctrine is invoked to determine whether a

dispute has yet matured to a point that warrants decision. The central concern is whether the case involves

uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.”47

Ripeness concerns not only whether a court can act — whether it has jurisdiction — but prudentially,

whether it should.48 In assessing ripeness, the Supreme Court has said, a court is required “to evaluate

both the fitness of the issues for judicial decision and the hardship to the parties of withholding court

49 Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

50 E.g., Buckley, 424 U.S. at 113-114 (considering events after the court of appeals’ decision); Regional RailReorganization Act Cases, 419 U.S. at 140 (stating that ripeness is governed by the present situation rather than the oneexisting when the trial court ruled).

51 13A W RIGHT, supra note 40, § 3532.1, at 136-137. But see 15 JAMES W M. MOORE, ET AL., MOORE’S FEDERAL

PRACTICE § 101.74 (3d ed. 2000) (stating without citing authority: “The burden is on the plaintiff to allege in the complaintsufficient facts to establish the court’s jurisdic tion. The court will review the issue for ripeness as of the time thelitigation is commenced. The matter must have been ripe for review at that time; subsequent ripening of the issue whilethe matter is under the court’s consideration on a jurisdictional motion to dismiss is not sufficient to confer the courtwith jurisdiction that did not originally exist when the action was initiated.”).

52 Balderas v. Texas, Civil No. 6:01-CV-158 (E.D. Tex., order filed July 23, 2001); Mayfield v. Texas, Civil No. 6:01-CV-218 (E.D. Tex., order filed July 23, 2001); Manley v. Texas, Civil No. 6:01-CV-231 (E.D. Tex., filed July 23, 2001).

53 971 S.W.2d 439, 442 (Tex. 1998).

16

consideration.”49 The Supreme Court has indicated that ripeness should be determined at the time of

adjudication.50 As Professor Wright has explained: “Ripeness should be decided on the basis of all the

information available to the court. Intervening events that occur after decision in lower courts should be

included, just as must be done with questions of mootness.”51 Petitioners argue that federal law permits

the consideration of post-filing circumstances only in determining prudential ripeness, not in determining the

ripeness required for jurisdiction, but we cannot find that distinction in the cases. Neither did the United

States District Court for the Eastern District of Texas in rejecting the argument in three of the pending

federal congressional redistricting cases “that subsequent events cannot ripen a dispute if the dispute was

unripe when the case was filed.”52

These principles of federal law are consistent with our own ripeness jurisprudence. In Patterson

v. Planned Parenthood, we stated that “the ripeness doctrine serves to avoid premature adjudication.”53

Quoting Professor Wright, we stated that “[r]ipeness thus focuses on whether the case involves ‘uncertain

54 Id. (quoting 13 W RIGHT, supra note 40, § 3532, at 112).

55 Id. at 442-443.

56 Id. at 441 (explaining that witness testified at trial that the state agency “had not yet made any final or officialdecisions” and “was considering” two plans).

57 Id.

58 Id. at 444 (emphasis added).

59 22 S.W.3d 849 (Tex. 2000).

60 Id. at 851-852 (quoting Patterson, 971 S.W.2d at 442) (emphasis in original).

17

or contingent future events that may not occur as anticipated, or indeed may not occur at all.’”54 Ripeness,

we said, involves both jurisdictional and prudential concerns.55 We did not suggest in Patterson that the

ripeness required for jurisdiction must be determined only as of the date a case is filed; on the contrary, we

considered evidence of circumstances after that date. The issue was whether a state appropriation rider

conflicted with federal regulations. Testimony at trial reflected that neither the state agency with

responsibility for the funds nor the federal agency with responsibility for the regulations had yet determined

what actions it would take.56 The trial court held that the rider was unconstitutional.57 On direct appeal,

the plaintiff did not argue that circumstances had changed. We reversed, concluding that “[b]ecause its

alleged injury remains contingent, [the plaintiff’s] claim is not yet ripe for review.”58

Petitioners point to our statement in Waco Independent School District v. Gibson59 that “[u]nder

the ripeness doctrine, we consider whether, at the time a lawsuit is filed, the facts are sufficiently

developed ‘so that an injury has occurred or is likely to occur, rather than being contingent or remote.’”60

But that statement must be taken in the context of that case, where the only issue raised was ripeness at

61 Id. at 850.

62 Id. at 851.

63 Mayfield v. Texas, No. 2:00-CV-268 (E.D. Tex., order filed Apr. 26, 2001); Lee v. Texas, No. 6:01-CV-98 (E.D.Tex., order filed Apr. 26, 2001); Associated Republicans of Texas v. Texas, No. W01-CA-083 (W.D. Tex., order filed May8, 2001).

18

the time the case was filed. The plaintiffs in Gibson sued to enjoin a school district from implementing “a

student-promotion policy requiring students in first through eighth grades to obtain a satisfactory score on

one of two standardized assessment tests to advance to the next grade.”61 The trial court dismissed these

claims on the pleadings because of the plaintiffs’ failure to exhaust administrative remedies, but the court

of appeals reversed.62 We held that the school district could challenge on appeal for the first time the lack

of ripeness of the plaintiffs’ claims, and that those claims, as pleaded, were not ripe. Because of the

procedural posture of the case, our decision was necessarily based on the plaintiffs’ pleadings. We did not

say that the time of filing was the only period ever relevant to ripeness.

Patterson and Gibson both support the proposition that a case which is not ripe when filed may

be dismissed, especially if the likelihood that it will soon become ripe cannot be demonstrated. The district

court could properly have dismissed Del Rio for lack of ripeness while the Legislature was still considering

redistricting during the regular session, just as the United States District Courts for the Eastern and Western

Districts of Texas dismissed the first three congressional redistricting cases for lack of ripeness.63 But just

as a case may become moot after it is filed, it may also ripen. After the claims in Del Rio ripened, the

district court was not required to dismiss the case simply because it was filed prematurely. The mischief

of a contrary rule is readily apparent: a party could delay raising the issue, even until appeal, and still insist

64 13A W RIGHT, supra note 40, § 3532.1, at 130.

19

upon dismissal for want of jurisdiction at the time the case was filed, even though the issues had long since

matured and been fully litigated.

Under federal law, Professor Wright concludes:

Ripeness cases have generated a functional approach that directly weighs the importanceof the interest advanced; the extent of the injury or risk; the difficulty of deciding thesubstantive issues and the allied need for specific factual illumination; and the sensitivity ofthe issues in relation to future cases, the states, and other branches of the federalgovernment.64

The ripeness doctrine is no less functional under Texas law.

Accordingly, we hold that a claim’s lack of ripeness when filed is not a jurisdictional infirmity

requiring dismissal if the case has matured.

B

The challenges to the State’s congressional districts in all four cases set for trial are now ripe, as

all parties agree. Adjudication need not, indeed must not, be delayed further. The parties dispute whether

Del Rio, ART, and Cotera were ripe when filed, but relators argue that even if Del Rio was filed before

the issues ripened, it should be tried first because it was filed first. We disagree.

It is not unusual for parties with a choice of forums to prefer one over another, and when more than

one party can sue on the same subject matter, they may choose difference courts. As a rule, when cases

involving the same subject matter are brought in different courts, the court with the first-filed case has

65 Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247-248 (Tex. 1988); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); Cleveland v. Ward , 285 S.W. 1063, 1070 (Tex. 1926).

66 Wyatt, 760 S.W.2d at 246-247.

67 Id.

68 Id. at 248.

69 Cleveland, 285 S.W. at 1071.

70 Id. (citing 1 FREEMAN ON JUDGMENTS § 335 (5th ed.)).

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dominant jurisdiction and should proceed, and the other cases should abate.65 The obvious reasons for

abatement, as we explained in Wyatt v. Shaw Plumbing Co., are the conservation of judicial resources,66

avoidance of delay,67 “comity, convenience, and the necessity for an orderly procedure in the trial of

contested issues”68 — or as we put it in Cleveland v. Ward, to “prevent races from court to court by

vigilant counsel”.69 The first-filed rule also has several justifications. The jurisprudential reason for the rule

is that once a matter is before a court of competent jurisdiction, “its action must necessarily be exclusive”

because it is “impossible that two courts can, at the same time, possess the power to make a final

determination of the same controversy between the same parties.”70 A pragmatic justification for the first-

filed rule is efficiency: proceedings earlier begun may be expected to be earlier concluded. A further

justification is simple fairness: in a race to the courthouse, the winner’s suit should have dominant

jurisdiction. The first-filed rule admits of exceptions when its justifications fail, as when the first court does

not have the full matter before it, or when conferring dominant jurisdiction on the first court will delay or

even prevent a prompt and full adjudication, or when the race to the courthouse was unfairly run. Thus,

in Wyatt we stated that the first-filed rule would not apply if a party’s conduct estops him from asserting

71 Cf. Leach v. Brown, 292 S.W.2d 329, 311 (Tex. 1956) (treating an amended petition as a new action in certaincircumstances).

21

dominant jurisdiction, if joinder of parties is infeasible or impossible, or if the plaintiff in the first case is not

intent on prosecuting his claims. A party who files suit on manifestly unripe claims, merely to win a race

to the courthouse, falls within the first exception. Having filed claims that clearly cannot be prosecuted, he

should be estopped from arguing dominant jurisdiction. Indeed, as we have just explained, such a case

might well be dismissed. To apply the rule in that case would encourage the intentional filing of unripe

claims, wasting the court’s and parties’ resources. But even if a plaintiff sues on unripe claims in good faith,

intending to prosecute them, we think the first-filed rule should not apply. Conferring dominant jurisdiction

on a court with such a case does nothing to promote a prompt adjudication because unmatured claims

cannot be prosecuted regardless of the plaintiff’s intent. And a party who jumps the gun can hardly argue

that he should win the race because he meant well. By the same token, however, we see no reason to

prohibit a party who files a ripe claim, either in a new suit or by amended pleading in an existing suit, from

proceeding first simply because he earlier filed the same claim before it was ripe. In such circumstances

the amended pleading should be treated for purposes of determining dominant jurisdiction as a new suit as

of the time it is filed, but not relating back to the commencement of the action.71

Consistent with the justifications for the first-filed rule, we hold that dominant jurisdiction cannot

be conferred on a court by the filing of a claim, either by an original or amended pleading, unless the claim

was ripe when the filing was made.

C

72 Patterson, 971 S.W.2d at 442 (quoting 13 W RIGHT, supra note 40, § 3532, at 112).

73 Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

74 377 U.S. 533, 583 (1964).

22

From what we have concluded thus far, the court with the first case that was ripe when filed has

dominant jurisdiction and should proceed immediately to trial, and the other cases should be abated. We

must now determine which case that is. As we have said already, “[r]ipeness . . . focuses on whether the

case involves ‘uncertain or contingent future events that may not occur as anticipated, or indeed may not

occur at all,’”72 and requires that we “evaluate both the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration.”73

The claims made in the four cases set for trial that congressional districts must be judicially redrawn

have two basic predicates. One relates to the structure of the districts. The claimants allege that existing

districts are too few, that Texas should have two more than the thirty now in place. The claimants also

allege that the population of the districts varies more than the United States Constitution permits. Even

assuming that either allegation could be proved without the decennial census, the policy of Article I, Section

2 of the Constitution is that the determination be based on the census. As the Supreme Court stated in

Reynolds v. Sims:

Limitations on the frequency of reapportionment are justified by the need for stability andcontinuity in the organization of the legislative system, although undoubtedly reapportioningno more frequently than every 10 years leads to some imbalance in the population ofdistricts toward the end of the decennial period and also to the development of resistanceto change on the part of some incumbent legislators.74

75 See notes 17 and 18, supra .

76 White v. Weiser, 412 U.S. 783, 794 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)).

23

Thus, whether existing districts are improperly structured depends on the 2000 census data. Preliminary

data showing that Texas is entitled to two additional seats was not released until December 28, 2000, and

while many predicted that that would be the result, as the Texas Legislative Council did early in 2000, it

could not be established without official census data. More detailed census data necessary to draw districts

with roughly equal populations were not released until March 12, 2001. Thus, the Del Rio case was not

ripe when it was filed on December 27, 2000, because the information necessary to prove the claims

asserted and obtain a remedy did not exist at that time. Any attempt to redraw congressional districts prior

to March 12, 2001, could only have been based on pure speculation. We note that the federal courts

dismissed all three of their cases filed before that date.75

The second basic predicate of the claims for judicial relief is that legislative relief is not forthcoming.

Redistricting, as we have noted above, “‘is primarily a matter for legislative consideration and

determination.’”76 Most often it is a highly charged political enterprise into which courts must not intrude

except as a last resort. Determining when that day has arrived is fraught with uncertainty, as the cases

before us illustrate. The plaintiffs in Del Rio alleged nearly two weeks before the Legislature’s regular

session opened that there was “reason to believe” that it would deadlock on redistricting issues. That may

have been a reasonable prediction at the time despite the fact that the Legislature did not deadlock on

congressional redistricting in 1971, 1981, or 1991. On May 8, the plaintiffs in Del Rio amended their

petition to allege that legislative inaction was “a near-certainty” because of impending deadlines set by

77 Associated Republicans of Texas v. Texas, No. W01-CA-083 (W.D. Tex., order filed May 8, 2001)(memorandum and order at 6).

78 TEX. CONST. art. III, § 32 (“No bill shall have the force of a law, until it has been read on three several daysin each House, and free discussion allowed thereon; but four-fifths of the House, in which the bill may be pending, maysuspend this rule, the yeas and nays being taken on the question of suspension, and entered upon the journals.”).

79 See H.J. of Tex., 77th Leg., R.S. 3019-3098 (2001).

80 See S.J. of Tex., 77th Leg., R.S. 1964 (2001).

81 See H.J. of Tex., 77th Leg., R.S. 5118-5147 (2001).

24

Senate and House rules. Yet that same day the federal court in its first ART case concluded that there was

“no threat” that the Legislature would fail to act before the next election cycle and dismissed the case for

lack of ripeness.”77 Indeed, both houses continued to suspend self-imposed deadlines. For example, on

May 11 the House suspended not only its own rules but the requirement of the Texas Constitution that bills

be read on three different days before passage,78 allowing a large number of bills to pass.79 That same day

the Senate, too, suspended its rules to allow the introduction of a new bill.80 Action within the regular

session was certainly far less likely on May 24 when ART was filed, although it remained a possibility if a

plan could be agreed on. Even on May 26, two days before the regular session was to adjourn, the

Governor would say only that “a special session may be necessary”. At least as far as legislative rules were

concerned, passage was still possible. On May 27, the House suspended all its rules to take up eighteen

conference committee reports filed after the stated deadline.81 When Cotera was filed on May 31, three

days after the regular session adjourned, there was some reason to think that a redistricting plan might be

adopted in a special legislative session, as was done in 1991, 1981, and 1971.

82 TEX. CONST. art. III, § 24(b).

25

While the ripeness of a claim for judicial redistricting requires a showing of legislative inaction, the

difficulties with such a showing are formidable. First, no one can speak with authority about what the

Legislature will and will not do. That body can speak only through a vote of its members, who may

themselves change positions. Second, predictions about the probable course of the legislative process are

notoriously unreliable, as anyone remotely familiar with the process well knows. Third, courts should not

encourage parties to predict, much less prove the improbability of, legislative inaction on the important

matter of redistricting. Every encouragement, at least from the judiciary, should be toward adoption of a

legislative solution. Fourth, parties should not be encouraged to enlist participants in the legislative process

to show that claims are ripe or not ripe. No person involved in the legislative process should be

encouraged to take or defer action in order to give an appearance that a case is or is not ripe. We do not

suggest that any of these problems have arisen with the pending cases; we list them only as potential

difficulties in proving legislative inaction. Finally, courts — federal and state — cannot defer so long in

hopes of legislative action that the election process is disrupted.

The only “hard and fast” deadline in the chronology of events was the one set by the Texas

Constitution: that the Legislature adjourn sine die not more than 140 days after its regular session

commenced.82 Enactment of legislation remained within the Legislature’s power until hours before

adjournment, and thus inaction remained uncertain and contingent until the end of the session. Redistricting

issues were not fit for judicial determination until the Legislature had its full regular session to discharge its

83 Growe v. Emison, 507 U.S. 25 (1993).

84 See 42 U.S.C. § 1973c.

85 TEX. ELEC. CODE § 172.023.

86 Id. § 41.007.

26

redistricting responsibility. Once the regular session adjourned, a reasonable opportunity remained for fully

litigating redistricting issues. To delay judicial proceedings further in case a special session might be called

would have increased the threat of disruption to the election cycle. In sum, applying settled rules of

ripeness, we conclude that the constitutional challenges to congressional districting became ripe at the end

of the regular session, but not before.

Petitioners argue that a third factor should also be considered in determining ripeness in this context

— the imminence of disruption to the election cycle. We agree that this is a relevant concern, although it

is certainly no easier to assess than the prospect of legislative inaction. According to the United States

Supreme Court, once a state legislature has had a chance to resolve redistricting issues, state courts must

have a reasonable opportunity to resolve disputes, followed by federal courts.83 In Texas, any state

solution requires preclearance by the United States Department of Justice under the Voting Rights Act,84

a process that often takes months. The filing period for candidates begins in early December,85 and the

party primaries are in March.86 Ideally, state litigation should therefore be completed well before October,

but how much earlier it should commence in order to meet that deadline is uncertain. The pending cases

illustrate that the risk of disruption to the election cycle increases dramatically if commencement of active

litigation is delayed after the conclusion of the Legislature’s regular session.

87 See 42 U.S.C. § 1973c.

88 Cf. Carstens v. Lamm, 543 F. Supp. 68 (D. Colo. 1982) (attempting to determine when legislative proceedingshad reached an impasse).

27

For the future, we think that the difficulties in determining the ripeness of such challenges are best

resolved by a bright-line rule — a set time after which judicial proceedings may be commenced and actively

prosecuted, even if legislative action remains a possibility. The most appropriate deadline is the

adjournment of the Legislature’s regular session. Even though it is quite possible that the Legislature will

adopt a redistricting plan afterward in special session, as it has often done before, to preclude

commencement of judicial proceedings any longer and still allow for a trial, appeals, preclearance under

the Voting Rights Act,87 and federal court proceedings, presents an unjustifiable risk of disruption to the

election cycle. It may be that in other states a bright-line rule would have less to commend it,88 but in

Texas, with regular legislative sessions being relatively short, special sessions being subject to the will of

the Governor, the absence of legislated procedures to streamline judicial proceedings to prevent problems

such as those now before us, and the limitations on this Court’s review of factual disputes like those

invariably raised in a weighing of circumstances, a bright-line rule of ripeness based on sine die

adjournment of the regular legislative session appears to best resolve the attendant problems. Of course,

should the Legislature adopt a redistricting plan in special session, the courts should defer to that plan if it

is legal. But otherwise the court action should proceed to trial and appeal so that a final decision can be

made in the state system in time for any review in the federal courts and under the Voting Rights Act.

28

For this case, however, applying settled ripeness law, we hold that the constitutional challenges to

congressional districts made in the cases awaiting trial were not ripe until the regular session of the

Legislature after the decennial census adjourned. The first case filed after that date was Cotera, and an

amended petition in Del Rio was filed the same day. The district court in Travis County therefore has

dominant jurisdiction.

III

It remains for us to determine what relief should be granted in the three matters before us.

Petitioners in No. 01-0728 request that we reverse the court of appeals in Del Rio and dismiss that case

for want of jurisdiction. That request is mooted by our conclusion that the trial court has jurisdiction in Del

Rio, and accordingly we dismiss the petition for review. Petitioners in No. 01-0810 request that we

reverse the court of appeals’s dismissal of the appeal related to Cotera and remand the case to that court

for consideration of petitioners’ arguments that the trial court lacks jurisdiction. That request, too, is

mooted by our analysis above, and we likewise dismiss that petition for review. The parties have

questioned whether trial is stayed by section 51.014(b) of the Texas Civil Practice & Remedies Code

because of the pendency of interlocutory appeals in this Court and in the First Court of Appeals in Houston.

Because today’s decision moots the issues in all such appeals, the statutory issue is removed.

Relators request that we grant mandamus relief directing the trial court in Harris County to abate

proceedings in ART and Rivas, the two cases pending there. Petitioners argue that relators’ petition for

mandamus, like Weddington’s filed July 24, should be denied because it was not first presented to the court

89 44 Tex. Sup. Ct. J. 1056 (Aug. 1, 2001) (citing TEX. R. APP. P. 52.3(e)).

90 Republican Party of Texas v. Dietz, 940 S.W.2d 86, 93-94 (Tex. 1997); Sears v. Bayoud, 786 S.W.2d 248, 249-250 (Tex. 1990).

91 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

92 Id. 840.

93 Huie v. DeShazo , 922 S.W.2d 920, 927-928 (Tex. 1996).

29

of appeals.89 But we are more than seven weeks closer to the federal court’s October 1 deadline for state-

court action than we were when Weddington’s petition was filed. Time has simply run out. Under these

circumstances, we must consider relators’ petition in the first instance.90

To obtain relief, relators must show that the trial court clearly abused its discretion and that they

have no adequate remedy by appeal.91 Our determination that the Cotera court has dominant jurisdiction

is based on settled principles, even though their proper application may not have been clear. As we have

explained, the circumstances on which the claims that have been asserted are predicated were not

sufficiently developed until the regular session of the Legislature adjourned, but they did not remain

contingent until the Governor’s final announcement that he would not convene a special session. Under the

law, ART and Rivas must be abated, and the district court’s failure to follow that law, even though its

application was uncertain, was a clear abuse of discretion. Because “[a] trial court has no ‘discretion’ in

determining what the law is or applying the law to the facts,”92 a trial court's “erroneous legal conclusion,

even in an unsettled area of law, is an abuse of discretion.”93

94 Walker, 827 S.W.2d at 842 (quoting Iley v. Hughes, 311 S.W.2d 648, 652 (Tex. 1958).

95 Growe v. Emison, 507 U.S. 25 (1993).

96 925 S.W.2d 591, 596-597 (Tex. 1996).

30

We stated in Walker v. Packer that an appellate remedy is inadequate, justifying issuance of

mandamus relief, “‘when parties stand to lose their substantial rights.’”94 In the current circumstances,

further confusion or delay in the trial of the pending challenges to congressional districting poses the very

real threat that the parties will not be able to obtain a decision in the state courts that is final on appeal

before the October 1 deadline set by the federal courts. Although counsel assured us at oral argument that

they and the two district courts involved have cooperated in an effort to conduct two trials of the same

issues, we think the inefficiency of such an approach and the uncertainty that will attend two appeals and

a final appeal to this Court pose an intolerable risk to completing the process within the limited time

remaining. The Supreme Court has recognized that the right of a state’s citizens to have districts drawn by

state institutions is so substantial that federal courts must reasonably accommodate the state process and

defer to a state solution.95 We believe that protection of this right necessitates the issuance of mandamus

relief here.

Furthermore, in CSR Ltd. v. Link, we recognized that exceptional circumstances may make a right

of appeal inadequate.96 The circumstances presented here clearly fall within that category. The importance

of achieving a decision of the districting claims that is final on appeal by the deadline set by the federal court

and in time for review under the Voting Rights Act, all so as to minimize the risk of disruption to the

impending election cycle, makes the issuance of mandamus relief not only appropriate but imperative.

97 511 S.W.2d 263, 268 (Tex. 1974).

98 695 S.W.2d 564, 567 (Tex. 1985); accord Hall v. Lawlis, 907 S.W.2d 493, 495 (Tex. 1995) (per curiam).

99 Cleveland v. Ward , 285 S.W. 1063, 1071 (Tex. 1926).

31

Finally, in Curtis v. Gibbs, we held that mandamus is appropriate to resolve disputes over

dominant jurisdiction.97 In Abor v. Black, we declined to grant mandamus relief directing a court to abate

a case in deference to another court’s dominant jurisdiction absent “any order [of the former court] which

actively interferes with the exercise of jurisdiction” by the court with dominant jurisdiction.98 Even under

this more restrictive test, relators do not have an adequate remedy by appeal. The district court’s order

in ART and Rivas setting those cases for trial at the very same time that Del Rio and Cotera are set for trial

actively interferes with the dominant jurisdiction in the latter cases. We recognize, of course, that trial was

first set in Harris County on September 10, and that the district court in Travis County later advanced the

trial setting to the same date, but as we have concluded, the court in Travis County has dominant

jurisdiction and should proceed first. It is unimportant to the issue of dominant jurisdiction which court first

set an earlier trial date.

“Courts are erected to settle controversies, not to multiply them.”99 Accordingly, we grant the

relators’ request that the district court in Harris County be directed to abate proceedings in ART and Rivas.

We are confident that the district court will promptly comply, and our writ will issue only if it does not.

Nathan L. HechtJustice

32

Opinion delivered: September 12, 2001